EXPLANATORY STATEMENT
STATUTORY RULES 1986 NO 27
ISSUED BY THE AUTHORITY OF THE MINISTER FOR FINANCE
SUPERANNUATION ACT 1976 - SUPERANNUATION (STATUTORY
OFFICES) REGULATIONS (AMENDMENT)
Section 168 of the Superannuation Act 1976 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters that the Act requires or permits to be prescribed, or that are necessary or convenient to be prescribed, for carrying out or giving effect to the Act.
The Act provides a contributory superannuation scheme for Commonwealth employees and certain other persons. Persons eligible to contribute under the Act are referred to in the Act as “eligible employees”.
Section 14 of the Act provides that where:
(a) a person is the holder of a statutory office to which he has been appointed for a term of not less than one year; and
(b) the person requests the Commissioner for Superannuation to direct that he be treated as an eligible employee for the purposes of the Act,
the Commissioner may direct that the person is, as from the date of the direction, an eligible employee.
Section 3 of the Act defines “statutory office” as an office established by an Act, by regulations made under an Act or by a law of a Territory, or an office specified in the regulations as an office that is a statutory office for the purposes of the Act. Offices so specified are contained in the Superannuation (Statutory Offices) Regulations.
The Inter-State Commission was established by section 101 of the Constitution. Section 103 of the Constitution provides for the appointment of the members of the Commission and section 7 of the Inter-State Commission Act 1975 provides that the Commission shall consist of a President and two other members.
On 1 September 1984 a direction was issued under section 14 of the Act in respect of a particular member of the Commission who had been appointed to that office from that date. This action was taken in the belief that an office of member of the Commission was a statutory office for the purposes of the Act and with the intention that the member concerned be an eligible employee for the purposes of the Act from 1 September 1984.
It was subsequently realised, however, following advice from the Attorney-General’s Department, that, as the office of member of the Commission was established by the Constitution, it does not come within the ambit of the definition of “statutory office” in section 3 of the Act unless specified as such an office in regulations under the Act. In the absence of such a specification, the direction issued on 1 September 1984 is invalid and the person concerned has had no status as an eligible employee under the Act since that date.
The Statutory Rule amends the Superannuation (Statutory Offices) Regulations to specify the office of member of the Commission as a “statutory office” for the purposes of the Act with effect from 1 September 1984.
The specification of the office of member of the Commission as a “statutory office” for the purposes of the Act ensures that appointees to that office are able to become eligible employees for the purposes of the Act where appropriate. The retrospective application of the amending Regulations from 1 September 1984 will validate the direction made on that date in respect of the particular member referred to above. This will protect him against disadvantage under the Act in that it will restore to him the period of contributory service for benefit purposes from 1 September 1984.
Sub-section 48(2) of the Acts Interpretation Act 1901 provides that regulations shall not be expressed to take effect from a date before the date of notification in any case where, if the regulations so took effect:
(a) the rights of a person (other than the Commonwealth or an authority of the Commonwealth) existing at the date of notification, would be affected in a manner prejudicial to that person; or
(b) liabilities would be imposed on any person (other than the Commonwealth or an authority of the Commonwealth) in respect of anything done or omitted to be done before the date of notification.
The retrospective application of the proposed Statutory Rule will, as mentioned above, protect a member of the Commission against disadvantage. No new liability will be imposed on the member as he has paid the contributions required by the Act since the date of the purported direction.